Judgment. BURTON The plaintiffs were not in a position to maintain an action in the nature of a quia timet action. Even if a case of actual nuisance had been established no property of the plaintiff's would have been affected, and they would not have been entitled to take proceedings in their own name, but here there was no evidence of an actual nuisance committed, nor evidence of imminent danger of a nuisance of a substantial character to any property of these plaintiffs. Should the flow of this sewage at any time become a public nuisance, the parties interested will not be without remedy. I think the appeal should be allowed, and the action dismissed. Appeal dismissed with costs, BURTON, J.A., dissenting. BRADY V. SADLER. Crown Patent-Reservation-Evidence. The description of lands conveyed by a Crown Patent was "all that parcel of land containing by admeasurement sixty acres, be the same more or less, being composed of lot number nine, exclusive of the lands covered by the waters of the S. River." Lot nine included, by metes and bounds, two hundred acres, but the S. River ran through it. At the time of, and for some time previous to, the issue of the patent the waters of the S. River at this place were penned back by a dam. Held, that the words the waters of the S. River" did not mean the waters of that river flowing in its natural channel merely, or the waters at the height at which they might happen to be on the day of the issue of the patent, but had the effect of reserving from the grant that portion of the lot liable to be covered, owing to the existence of the dam, by the waters of the river, at their natural height at any time during the ordinary changes of the seasons. Held also, that extrinsic evidence was admissible for the purpose of explaining the language of this description, and that, upon that evidence, the land in question had not passed under the grant. Judgment of the Queen's Bench Division, 16 O. Ř. 49, reversed. THIS was an appeal from the judgment of the Queen's Statement. Bench Division, reported 16 O. R. 49. The defendants carried on business as millers at the town of Lindsay, and were the owners of a large mill, power for which was supplied by the waters of the Scugog River. At the mill there was a dam which had been erected by the Government of the late Province of Canada in the year 1843. The plaintiffs were farmers, owning lands about fifteen miles from the dam, through which a branch of the Scugog River, known as East Cross Creek, flowed, and they complained that the defendants had wrongfully placed bracket boards on the dam and had thereby raised the waters of the river so as to flood certain portions of their lands, and they claimed an injunction. The defendants claimed that they had a prescriptive right to use bracket boards upon the dam in question, and also set up the defence that the plaintiffs had acquired their lands after the building of the dam, and that under the provisions of the Mill Dam Act they could not recover any 47-VOL. XVII. A.R. Statement. damages. They also contended that the plaintiffs had no title to the portion of the land that was overflowed. The Letters Patent from the Crown of the plaintiffs' land were issued on the 10th of January, 1852, and contained the following clauses: Now know ye that in consideration of the said sum of Thirty-five pounds by him the said Michael Brady to our said Commissioner of Crown Lands, in hand well and truly paid to our use, at or before the sealing of these our Letters Patent, we have granted, sold, aliened, conveyed and assured, and by these Presents do grant, sell, alien, convey and assure unto the said Michael Brady, his heirs and assigns forever all that parcel or tract of land, situate, lying and being in the township of Ops, in the county of Victoria, in our said Province, containing by admeasurement 60 acres, be the same more or less; which said parcel or tract of land may be otherwise known as follows, that is to say: being composed of lot number 9, in the 4th concession of the aforesaid township of Ops, exclusive of the lands covered by the waters of the Scugog River, which are hereby reserved, together with free access to the shore. thereof for all vessels, boats and persons. To have and to hold the said parcel or tract of land hereby granted, conveyed, and assured, unto the said Michael Brady, his heirs and assigns for ever; saving, excepting, and reserving, nevertheless, unto us, our heirs and successors, all mines of gold and silver, and the free uses, passage, enjoyment of, in, over and upon all navigable waters that shall or may be hereafter found on or under, or be flowing through or upon any part of the said parcel or tract of land hereby granted as aforesaid. and The action was tried before PROUDFOOT, J., at Lindsay, and he dismissed it with costs, but upon appeal his judgment was reversed by the Divisional Court of the Queen's Bench Division. The defendants appealed and the appeal came on to be Argument. heard before this Court (HAGARTY, C. J. O., GALT, C. J. C. P., BURTON, and OSLER, JJ.A.) on the 3rd and 5th of April, 1890. E. Blake, Q.C., S. H. Blake, Q.C., and T. Stewart, for the appellants. In order to properly construe this patent it is necessary to look at the certificates and letters that passed between the parties at the time the patent was issued, and evidence is also admissible to show the circumstances and situation at the time of the grant so that it may be seen what actually was intended to pass under the patent. To do this is not a transgression of the rule that oral evidence is not to be admitted to vary a written document: Cartwright v. Detlor, 19 U. C. R. 210; Stevens v. Buck, 43 U. C. R. 1; Re Trent Valley Canal, 12 O. R. 153; Herrick v. Sixby, L. R. 1 P. C. 436; Lord v. Commissioners of Sidney, 12 Moo. P.C. 473; Shore v. Wilson, 9 Cl. & F. 355; Iler v. Nolan, 21 U. C. R. 309; Lloyd v. Henderson, 25 C. P. 253; Grahame v. Brown, 12 C. P. 418. The land covered by the waters of the Scugog is excluded, and that must mean all the land covered by the waters of the Scugog or its tributaries at ordinary high water mark: Angell on Water Courses, 7th ed., secs. 4, 41; Parker v. Elliott, 1 C. P. 470; Plumb v. McGannon, 32 U. C. R. 8. It is clear upon the evidence that the lands in respect of the flooding of which the complaint is now made, are covered by the waters of the Scugog in the ordinary season of high water, and that the use of bracket boards at the season of low water does not cause the waters of that river to reach a higher mark than they do without the boards in the ordinary season of high water, so that clearly the plaintiffs have no title and no right to recover. Robinson, Q.C., Moss, Q.C., and H. O'Leary, for the respondents. The grant from the Crown to the plaintiffs is of the whole of lot number 9, with the exception or reservation of lands covered by the waters of the Scugog River, and the words of the exception must be construed in favour Argument. of the grantee: Bullen v. Denning, 5 B. & C. 842. Full meaning is given to the words of the exception or reservation by confining them to the waters of the river within its bed, and this is their ordinary and natural sense. The whole lot, subject to the exception of that part covered by the bed of the river, was bought and paid for, and the mere statement in the patent that sixty acres, more or less, are intended to be conveyed, does not limit the amount properly passing under the patent, if in fact there were more than sixty acres. The papers and documents from the Crown Lands Department were not properly admissible to control the effect of the patent. E. Blake, Q.C., in reply. (The learned counsel argued at great length the questions arising under the Mill Dam Act and under the Statute of Limitations, but it is not necessary, in view of the point upon which the decision turned, to notice these arguments.) May 13th, 1890. GALT, C.J.C.P.: By the terms of the patent the grantee was to take "all that parcel or tract of land situate, lying and being in the township of Ops, containing by admeasurement 60 acres, be the same more or less, being composed of lot number 9, in the 4th concession of the township of Ops, exclusive of the lands covered by the waters of the Scugog River, which are hereby reserved, together with free access to the shore. thereof for all vessels, boats and persons." This is not a grant of lot 9 in the 4th concession, but of 60 acres, more or less, of the lot, and is confined to the lands which were not covered by the waters of the Scugog River. It was therefore necessary that evidence should be given to ascer tain what 60 acres had been granted. Years before this patent was issued the dam at Lindsay across the Scugog River had been constructed, and the lands which were reserved were, the lands which in conse |